Sinclair v The Minister for Health
[2007] WASCA 253
•9 NOVEMBER 2007
SINCLAIR -v- THE MINISTER FOR HEALTH [2007] WASCA 253
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 253 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:142/2007 | 9 NOVEMBER 2007 | |
| Coram: | PULLIN JA NEWNES AJA | 8/11/07 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time in which to apply for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | LINDSAY KAY SINCLAIR THE MINISTER FOR HEALTH in his capacity as THE BOARD OF KING EDWARD MEMORIAL HOSPITAL |
Catchwords: | Practice and procedure Application for extension of time in which to appeal Turns on own facts |
Legislation: | District Court of Western Australia Act 1969 (WA), s 79 |
Case References: | Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allmark v Mossenson [2006] WASCA 127 Gallo v Dawson (No 2) (1992) 66 ALJR 859 Wilson v Metaxas [1989] WAR 285 Wing Luck Foods v Le Chou Lim [1989] WAR 358 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SINCLAIR -v- THE MINISTER FOR HEALTH [2007] WASCA 253 CORAM : PULLIN JA
- NEWNES AJA
- Appellant
AND
THE MINISTER FOR HEALTH in his capacity as THE BOARD OF KING EDWARD MEMORIAL HOSPITAL
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
File No : CIV 4532 of 1994
Catchwords:
Practice and procedure - Application for extension of time in which to appeal - Turns on own facts
(Page 2)
Legislation:
District Court of Western Australia Act 1969 (WA), s 79
Result:
Application for extension of time in which to apply for leave to appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr D R Clyne & Ms W S Meggison
Solicitors:
Appellant : In person
Respondent : Dibbs Abbott Stillman
Case(s) referred to in judgment(s):
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Allmark v Mossenson [2006] WASCA 127
Gallo v Dawson (No 2) (1992) 66 ALJR 859
Wilson v Metaxas [1989] WAR 285
Wing Luck Foods v Le Chou Lim [1989] WAR 358
(Page 3)
1 PULLIN JA: This is an application for an extension of time to seek leave to appeal and to appeal against the orders made by Judge Goetze. The notice of appeal and the application for leave was filed one day out of time. If an extension of time and leave is granted the appellant proposes in the appeal to challenge the interlocutory orders made by Judge Goetze.
2 The orders consisted of commonsense management orders to allow for a smooth trial and an order that the appellant answer two interrogatories. Case management orders were for the provision of documents, the provision of the names of experts who had prepared reports, the preparation of an index of reports, the filing of witness statements, the filing of one witness statement in a sealed envelope, the filing of responsive statements, the usual orders relating to witness statements, the filing of documents to be tendered, the filing of a chronology and a schedule of damages and other subsidiary orders.
3 The appellant gives no excuse for the late filing of the notice of appeal and application for leave save that she deposes that she waited until she obtained a transcript of the hearing before preparing the notice of appeal. The appellant also deposes that she did not receive the sealed order before 1 November 2007 but that is irrelevant because that date was after the appeal notice was filed.
4 The grounds of appeal do not complain about the form or content of the orders but merely that the orders were made in the absence of the appellant in circumstances where she had telephoned Judge Goetze's associate and advised that she could not attend:
Because my McKenzie friend was sick and apart from the fact that I cannot represent myself in Court that also left me without someone to drive me to Perth.
5 The complaint is that orders were made in the appellant's absence. It is clear that the appellant knew that the application was listed for hearing. Leave is required before a party may appeal against an order of the District Court if it is not a final order. See s 79 of the District Court of Western Australia Act 1969.
6 An interlocutory order is not a final order. See Allmark v Mossenson [2006] WASCA 127 [23]. The requirement for leave in the case of interlocutory appeals is to reduce the number of appeals. The discretion to grant leave is unconfined by an express criteria but usually the court will want to be satisfied that the decision below is attended with sufficient doubt to justify the grant of leave and that a substantial injustice
(Page 4)
- would be done if it remained unreversed. See Wing Luck Foods v Le Chou Lim [1989] WAR 358, Allmark [27] and Wilson v Metaxas [1989] WAR 285.
7 In matters of practice and procedure a tight rein needs to be kept on applications to interfere with the orders of judges at first instance. See Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170. If an extension of time is to be granted a relevant consideration is whether there is merit in the application for leave to appeal.
8 The orders made here do not change substantive rights and if there is a genuine difficulty with time limits or any aspect of the orders then further case management orders may be made in the District Court or orders may be made varying the existing orders. There is nothing in the material placed before this court that shows that there will be any injustice let alone substantial injustice if the orders made by Judge Goetze are not reversed.
9 As a result there is no merit in the leave application and an extension of time should not be granted if the appeal has no prospects of success. See Gallo v Dawson (No 2) (1992) 66 ALJR 859. In addition there is no satisfactory explanation for the failure to appeal within the time limit. The application is therefore dismissed.
10 NEWNES AJA: I agree and have nothing to add.
3
4
1